Justices take the measure of fish case: In Plain English

Posted Wed, November 5th, 2014 10:28 pm by Amy Howe

For the rest of the nation’s capital, yesterday’s elections may have been the week’s headliner, but inside the Supreme Court the main event came today, as spectators – including retired Justice Sandra Day O’Connor and Judge Brett Kavanaugh of the D.C. Circuit – packed the courtroom to hear a case about . . . fish. Specifically, the seventy-two red grouper that commercial fisherman John Yates had ordered his crew to throw overboard after a Florida official (working on behalf of the federal government) determined that they were smaller than the legal limit. Yates was charged with violating a federal law that makes it a crime to “knowingly . . . destroy[] any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation, even one that has not yet been officially initiated. (I previewed the case in Plain English yesterday.)

Arguing on Yates’s behalf today, lawyer John Badalamenti began by telling the Justices that the “natural” and “sensible” meaning of the phrase “tangible object” includes only items used to preserve information. Given how broadly the law would apply under the government’s interpretation, he argued, it is impossible to think that Congress would have “buried” it in a part of the Sarbanes-Oxley Act dealing with the destruction of corporate documents.

When Badamalenti paused, the questions began to come, fast and furious, from all sides of the bench. Some Justices expressed doubts about his interpretation itself. Justice Ruth Bader Ginsburg, for example, told Badalamenti that, instead of the phrase “tangible object,” Congress could have used the phrase “tangible object used to preserve information.” If it had done so, she continued, “your case would be solid.” But it didn’t.

And Justice Elena Kagan appeared unpersuaded by Badalamenti’s contention that Congress’s use of the verb “make a false entry in” before the phrase “record, document, or tangible object” supported his position because you can only “make a false entry in” something intended to preserve information; you can’t make a false entry in a fish. Congress, Justice Kagan countered, included more verbs in the statute so that it would cover more conduct. But not every verb has to apply to every noun. His client’s whole argument, Justice Kagan told Badalamenti, rests on Congress’s use of words relating to records in the statute. But “the fact that this is about any matter within the jurisdiction of any agency in the United States shows that it’s not really just about corporate fraud, that Congress had a broader set of things in mind.” She repeated this sentiment at the end of Badalamenti’s opening argument, telling him that “Congress gives very strict penalties to lots of minor things. But that’s what it does.”

But many of the Justices’ questions for Badalamenti sought to test how his proposed rule would work, and what the limits would be. For example, Justice Anthony Kennedy wanted to know whether the law would apply to someone who destroyed both an incriminating document and the typewriter that had been used to prepare the document. Badamalenti responded that the law would not apply to the typewriter (although it would to the document), because the typewriter doesn’t preserve the information on the document. Kennedy later asked whether the law would apply if Yates had taken pictures of the fish and destroyed both the pictures and the fish. Badamalenti once again distinguished between the two different types of evidence: he conceded that pictures taken with film (here’s an explanation of “old-time film” for our younger readers) would be a “record” that would fall within the statute, even if the statute didn’t apply to the fish itself. These answers led Justice Kennedy to suggest that, although the argument that the government’s interpretation would render too much conduct criminal has “considerable force,” Yates’s interpretation actually would create even more uncertainty and vagueness.

Other Justices weighed in with more hypotheticals. Justice Ruth Bader Ginsburg asked Badalamenti to respond to the government’s contention that, under Yates’s reading, the statute would prohibit the destruction of a letter from a murder victim, but not the destruction of the murder weapon itself. That was correct, Badalamenti confirmed, because only the letter would be “record-related.” When asked by Chief Justice John Roberts whether he would have the same answer if the murder weapon were a knife with the perpetrator’s name on it, Badalamenti answered that he would. The name on the knife, he told the Court, just identified the murderer. It is evidence, but not record-related.

Although Badalamenti’s time at the lectern was certainly no picnic, Assistant to the Solicitor General Roman Martinez encountered even more skepticism during his thirty minutes of oral argument, as Justice after Justice voiced concerns about the potentially sweeping reach of the government’s interpretation of the statute. Justice Antonin Scalia was Martinez’s main antagonist, unleashing a barrage of questions and comments that removed any doubt about where his sympathies lay. He complained that, under the statute, Yates had faced a maximum sentence of up to twenty years. What federal prosecutors, he asked Martinez, have this kind of discretion in choosing what charges to bring? Referring to last Term’s Bond v. United States, in which a Pennsylvania woman had been charged with violating the federal laws implementing an international chemical weapons treaty after she tried unsuccessfully to poison her husband’s lover, Justice Scalia asked Martinez whether the prosecutor in this (Florida) case was “the same guy” as in Bond. “What kind of mad prosecutor,” Scalia continued, “would ask for twenty years” in prison for destroying fish?

Justice Ruth Bader Ginsburg joined the fray, asking whether the Department of Justice gives federal prosecutors any guidance on what charges they should bring in a case like this. A similar statute, carrying only a five-year maximum sentence, would also apply to Yates’s case, she noted. Martinez’s response – that a manual instructs federal prosecutors to bring the charges that are most severe – drew even more ire from Justice Scalia. He warned ominously that, “if that’s going to be the Department of Justice’s position, we’re going to have to be very careful about interpreting the scope” of laws like these.

The Chief Justice also appeared skeptical of the government’s argument. He inquired whether the government would bring charges under this particular statute whenever someone destroys a “tangible object.” Martinez assured him that the federal government does not actually file criminal charges in “every fish disposal case.” However, that answer appeared to provide little comfort to the Chief Justice, who shot back that the important thing was that, on its reading, the government could do so. And the possibility of a twenty-year sentence, the Chief Justice suggested, would give government lawyers “extraordinary leverage” to try to get someone to plead guilty. Justice Stephen Breyer would later echo these concerns, telling Martinez that, “if you can’t draw a line, there is a risk of arbitrary or discriminatory enforcement” of the statute.

Martinez tried to direct the Court’s attention to what he described as some of the weaknesses in Yates’s interpretation. He contended (much as Justice Kagan had earlier) that all of the verbs in the statute do not necessarily apply to all of the nouns, reducing the force of Yates’s argument that a “tangible object” has to be something in which you can make a false entry. After all, he asserted, no one would say that you can mutilate an email or falsify a blank hard drive, both of which would follow from Yates’s reading of the law. But even these efforts only got him so far. Justice Alito acknowledged to Martinez that “you have arguments on all of these points,” but he then admonished Martinez that “you are really asking the Court to swallow something that’s pretty hard to swallow.” “This statute, as you read it,” Justice Alito continued, “is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of twenty years, and then you go further and say that it is the policy of the Justice Department that this has to be applied in every one of these crazy little cases.” What if, Justice Alito asked, you had a case involving one person who was fishing on federal land and threw away one undersized fish?

Martinez conceded that the Court’s concerns that the statute might be used to prosecute even minor offenses were “serious,” but he tried to alleviate those concerns by assuring the Justices that judges and juries will take those concerns into account in cases brought under the statute. And he reminded the Court that, even if it were worried that the government’s interpretation could result in harsh punishments for trivial offenses, Yates’s proposed interpretation wouldn’t solve that problem. All Yates is arguing, Martinez emphasized, is that the statute should only apply to particular kinds of evidence – evidence intended to preserve information. He is not arguing that there is some threshold below which all offenses are too minor to warrant prosecution under the statute.

In the end, the Justices seemed to have two distinct choices: Yates’s narrower interpretation, even though it might create “odd” results like Justice Kennedy’s film hypothetical; or the government’s broad interpretation, even if it could potentially result in lengthy prison sentences for very minor infractions. The Justices’ overall outrage about the potentially sweeping reach of the statute under the government’s rule seemed to outweigh their concerns about Yates’s reading of the statute, suggesting that a majority of the Court may be poised to choose what they regard as the lesser of two evils and strike down his conviction. We’ll know for sure by the end of June, and when we do we will be back to report on it in Plain English.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.